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Judge Limits Guantánamo Questioning by Lindh Lawyers

The judge in the case of John Walker Lindh worked out a complex process today by which defense lawyers will be able to put questions about Mr. Lindh to 19 prisoners at Guantánamo Bay, Cuba, but not in face-to-face interviews.

The defense maintains that some of the prisoners may be able to clear Mr. Lindh of even so much as any aggressive actions he might have taken while serving alongside them in Afghanistan.

If his lawyers are successful in that effort, the case against Mr. Lindh, who is charged with 10 counts including conspiring to kill Americans and providing services to the Taliban and Al Qaeda, could be significantly weakened.

The judge, T. S. Ellis III, sided with the government today in denying the defense any personal contact with the Guantánamo prisoners, agreeing that the lawyers' face-to-face interviewing of them could disrupt the government's continuing interrogations.

But Judge Ellis told prosecutors that he would not necessarily continue siding with them should Mr. Lindh's lawyers seek to question the prisoners later, during trial. The government was thus put on notice that it might have to decide whether to drop certain charges against Mr. Lindh if it keeps trying to guard what it describes as national security interests that could be compromised by in-person defense questioning of Taliban and Qaeda fighters captured in Afghanistan.

The testimony of the prospective witnesses at Guantánamo is important to both the prosecution and the defense, and in the last several weeks both sides proposed ways to ensure Mr. Lindh's constitutional right to have access to them.

Underscoring the importance of Judge Ellis's decision, Michael Chertoff, assistant attorney general in charge of the Justice Department's criminal division, attended today's hearing at the federal courthouse here, sitting with United States Attorney Paul J. McNulty, who is prosecuting the case. Mr. Chertoff told a reporter only that he was on a ''field trip.''

Mr. Lindh also sat in the courtroom. He wore glasses and smiled broadly. His black hair, cut to a short crop after his capture, has grown back thick, although it is not nearly so long as when he was seized last winter. His father, Frank Lindh, attended the hearing as well, but his mother did not.

Mr. Lindh's lawyers noted that defendants have a due-process right to pretrial access to potential witnesses. Arguing for face-to-face interviews with the 19 Guantánamo prisoners whom they have identified as prospective witnesses, the lawyers said they wanted a chance to ask follow-up questions, see the prisoners' body language and judge their credibility. None of that is possible, they said, except face to face.

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But prosecutors said this could disrupt the government's interrogation of prisoners, allow them to manipulate the system and pose a risk to national security. They suggested that the defense submit written questions instead, and Judge Ellis agreed.

The judge also decided that to make sure the questions do not jeopardize national security, they must first be cleared by lawyers for the Pentagon and the United States attorney's office in another, as yet unidentified district, separate from the one prosecuting the Lindh case here.

Once cleared, the questions are to be subtly woven into the interrogations being conducted at Guantánamo by American intelligence officers. The idea is to conceal from the prisoners that they are being asked anything extraordinary that might allow them to bargain for advantages or manipulate the process through their responses.

The judge said a written translation of the relevant portion of an interrogation was to be provided to the defense no more than 24 hours afterward, by secure fax. If the defense has any follow-up questions, it can then submit them.

The interrogations will also be videotaped. The defense will be allowed to see the tapes, and to have an independent language translator see them and interpret the prisoners' answers.

Judge Ellis said he would reassess the procedure as the case went along. Trial is set for Aug. 26.

While the judge denied Mr. Lindh's lawyers direct access to these 19 prisoners, he indicated that he was inclined to allow access to a 20th prisoner from the Afghan fighting, who was once held at Guantánamo but has since been moved to Norfolk, Va. That prisoner, Yasser Esam Hamdi, who was born in the United States but may carry dual citizenship with Saudi Arabia, has not been charged. He is to appear on Wednesday before a judge in Norfolk.

Judge Ellis said the government's arguments against allowing the Lindh lawyers to go to Guantánamo were not relevant to their access to Mr. Hamdi, who at this point is not under government interrogation. It is not clear, however, whether Mr. Hamdi will agree to be interviewed by Mr. Lindh's lawyers or, if so, when they might visit him.

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A version of this article appears in print on May 29, 2002, on Page A00016 of the National edition with the headline: Judge Limits Guantánamo Questioning by Lindh Lawyers. Order Reprints|Today's Paper|Subscribe